335 N. Main Ave., Suite 200, Sioux Falls, South Dakota, 57104 │ Telephone (605) 336 – 9230 │ Fax (605) 336 – 6919 March 27, 2020 The Honorable Chief Justice David E. Gilbertson 200 East Capitol Avenue Pierre, SD 57501 Dear Chief Justice Gilbertson: I am sending you this request on behalf of East River Legal Services and Dakota Plains Legal Services. The COVID-19 pandemic presents an unprecedented challenge to our State, proactive measures must be taken. The spread of the COVID-19 pandemic has triggered sustained reductions in the workforce and household income. Large numbers of workers already living paycheck to paycheck will soon be left unable to pay their rent and risk eviction from their homes. Further, responding to an unlawful detainer action requires parties to appear at courthouses, regardless of their health making it impossible for high-risk individuals to selfquarantine, and increasing their risk of contracting the virus. Supreme Courts and Governors across the country are identifying this economic hardship and issuing executive and judicial orders to assist in allowing their state residents to “stay-in-place” while we attempt to limit exposure and manage this crisis. MT, NM, OH, SD, WI, and WY appear to be the only states without some sort of moratoria. For this reason, we are requesting the South Dakota Supreme Court issue an Order directing each circuit court to stay any eviction and foreclosure proceedings during the course of the COVID-19 pandemic. We propose the following order: 1. Beginning ________, 2020 at 5:00 pm, and continuing for the duration of the peacetime emergency declared in Executive Order 20-01 or until this Order is rescinded, any action under S.D. Codified Laws Ann. §§ 21-16-1(4) and 21-16-2) on behalf of property owners, mortgage holders, or other persons entitled to recover residential premises after March 1, 2020 because a household remains in the property after a notice of termination of lease, after the termination of the redemption period for a residential foreclosure, after a residential lease has been breached, or after nonpayment of rent, is hereby stayed. 2. Beginning no later than _________ at 5:00 pm, and continuing for the duration of the peacetime emergency declared in Executive Order 20-01 or until this Order is rescinded, all officers who hold an order to vacate must cease executing such order as required by SDCL §§ 21-16-10, 11. 3. Nothing in this Executive Order relieves a tenant’s obligation to pay rent. This suspension does not limit the right of a landlord to terminate a rental agreement for other 335 N. Main Ave., Suite 200, Sioux Falls, South Dakota, 57104 │ Telephone (605) 336 – 9230 │ Fax (605) 336 – 6919 legally permissible reasons under South Dakota law, such as criminal conduct on the property or noncompliance with the rental agreement that is unrelated to payment terms of the agreement, or where the tenant seriously endangers the safety of other residents. As Chief Justice you would have the authority to issue such an Order under SDCL § 16-3-14. It reads as follows: Suspension, extension, or other relief from deadlines, time schedules, or filing requirements. An order declaring a judicial emergency may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters or any other legal proceedings as determined necessary. The days covered by a judicial emergency order are deemed a holiday for time computation under the rules of civil procedure. Additional examples of Orders being issued across the country and additional informational resources can be found in the Addendum attached to this letter. The language I am proposing for the Order is based largely on the recent Executive Order from Minnesota. As we begin a new month, those who are already laid-off will struggle to pay their rent in April. Time is of the essence to ensure residents can remain in their home as we all do our part to get through this public health crisis together. If you have any questions, please reach out to me at any time. Sincerely, Brent Thompson Executive Director 335 N. Main Ave., Suite 200, Sioux Falls, South Dakota, 57104 │ Telephone (605) 336 – 9230 │ Fax (605) 336 – 6919 ADDENDUM The safety net provided by the current federal moratorium is limited only to those renting through the Department of Housing and Urban Development or those whose mortgages are held by Fanny Mae and Freddie Mac, leaving many others at continued risk of losing the safety of their shelter. Below is some guidance I have found related to the federal moratorium: • • • Federal Foreclosure and Eviction Moratoriums During Covid-19 Crisis: Who is Protected, and Who is Left Out? by Federal Finance Housing Agency. https://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Moves-to-Provide-EvictionSuspension-Relief-for-Renters-in-Multifamily-Properties.aspx Facing Eviction as Millions Shelter in Place: Renters are at Risk of Being Forced Out of Their Homes in the Middle of the Covid-19 Pandemic, by Jessica Contrera and Tracy Jan of the Washington Post. https://www.washingtonpost.com/dc-md-va/2020/03/22/evictions-Covid-19-rentersshelter-in-place/ Inside the Fight to Block Evictions During A Pandemic By Emma Whitford, Freelance Journalist based in Brooklyn. https://www.law360.com/access-to-justice/articles/1255388/inside-the-fight-to-blockevictions-during-a-pandemic- Below is a useful spreadsheet listing the actions taken by each state regarding moratoriums. • Survey of COVID-19 Eviction Moratoria by State, Commonwealth and Territory by Emily Benfer from Columbia Law School. https://docs.google.com/spreadsheets/d/e/2PACX1vTH8dUIbfnt3X52TrY3dEHQCAm60e5nqo0Rn1rNCf15dPGeXxM9QN9UdxUfEjxwv fTKzbCbZxJMdR7X/pubhtml The National Housing Law Project has sought to increase the efficacy of eviction moratoria by issuing best practices and drafting a model eviction moratorium designed to stop all five phases of the eviction process. • • Covid-19 Eviction Moratoria: Considerations and Best Practices. https://docs.google.com/document/d/14rz4hhMbIRbShHWccsFtIWV2FXn6NcgW0IBh9 UTdM54/edit Model Eviction Moratorium Act. https://www.nhlp.org/wp-content/uploads/2020.03.20-Model-Eviction-MoratoriumAct_FINAL.pdf Some relief is available to landlords who are being forced to forego evictions during the pandemic. Mortgage payment forbearance is available from Fannie Mae and Freddie Mac to multi-housing 335 N. Main Ave., Suite 200, Sioux Falls, South Dakota, 57104 │ Telephone (605) 336 – 9230 │ Fax (605) 336 – 6919 unit landlords who agree to suspend all evictions. In Minnesota, their eviction moratorium explicitly stated nothing in its Order relieves a tenant’s obligation to pay rent and also made available small-business loans to landlords. • • • FHFA Moves to Provide Eviction Suspension Relief for Renters in Multifamily Properties. https://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Moves-to-Provide-EvictionSuspension-Relief-for-Renters-in-Multifamily-Properties.aspx Emergency Executive Order 20-14 Suspending Evictions and Writs of Recovery During the COVID-19 Peacetime Emergency. https://mn.gov/governor/assets/EO%2020-14%20Filed_tcm1055-424508.pdf Emergency Executive Order 20-15: Providing Immediate Relief to Small Businesses During the COVID-19 Peacetime Emergency. https://mn.gov/governor/assets/EO%2020-15%20Filed_tcm1055-424509.pdf In recognition of the dire need to help people isolate from one another as a means of staving off the pandemic, the Centers for Disease Control and Prevention and National Law Center on Homelessness and Poverty have even issued guidance encouraging localities from displacing those experiencing unsheltered homeless from their current locations. • • Interim Guidance for Responding to Covid-19 Disease 2019 (COVID-19) among People Experiencing Unsheltered Homelessness. https://www.cdc.gov/Covid-19/2019-ncov/community/homeless-shelters/unshelteredhomelessness.html CDC: Housing, Not Handcuffs Is the Way to Stop COVID-19 Amongst Homeless Populations. https://nlchp.org/housing-not-handcuffs-is-the-way-to-stop-covid-19/